State v. Gordon

Citation321 A.2d 352
PartiesSTATE of Maine v. Richard John GORDON.
Decision Date17 June 1974
CourtSupreme Judicial Court of Maine (US)

Henry N. Berry, III, County Atty., Peter G. Ballou, Asst. County Atty., Portland, for plaintiff.

Pierce, Atwood, Scribner, Allen & McKusick by S. Mason Pratt, Jr., Portland, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

WERNICK, Justice.

An indictment returned (on June 27, 1972) by a Cumberland County Grand Jury to the Superior Court charged defendant, Richard John Gordon, with having committed the crime of 'armed robbery' in violation of 17 M.R.S.A. § 3401-A. 1 A separate indictment accused defendant of having, with intention to kill, assaulted a police officer, one Harold Stultz. Defendant was arraigned and pleaded not guilty to each charge. Upon motion by the State, and over defendant's objection, the presiding Justice ordered a single trial on the two indictments. The trial was before a jury. On the 'assault' the jury was unable to reach a verdict and as to that charge a mistrial was declared. The jury found defendant guilty of 'armed robbery.' From the judgment of conviction entered on the verdict defendant has appealed, assigning ten claims of error.

We deny the appeal.

The jury was justified in finding the following facts.

One Edwin Strode, and defendant had escaped in Vermont from the custody of the authorities who had been holding them on a misdemeanor charge. In the escape defendant and Strode had acquired two hand guns and also a blue station wagon in which they had fled from Vermont through New Hampshire into Maine. Near Standish, Maine, the station wagon showed signs of engine trouble, and defendant and Strode began to look for another vehicle. They came to the yard of one Franklin Prout. In the yard was Prout's 1966 maroon Chevelle and defendant, who was operating the station wagon, drove it parrallel to the Prout Chevelle. Observing that the keys were in the Chevelle, Strode left the station wagon and entered the Chevelle. At this time Prout came out of his house into the yard. Strode pointed a gun at him, and defendant and Strode then told Prout that they needed his automobile, were going to take it but they 'would take care of it and see he (Prout) got it back as soon as possible.' With defendant operating the station wagon and Strode the Chevelle, defendant and Strode left the yard and proceeded in the direction of Westbrook. Subsequently, the station wagon was abandoned in a sand pit, and defendant and Strode continued their flight in the Chevelle. A spectacular series of events followed-including the alleged assault (with intent to kill) upon Westbrook police officer, Stultz, a shoot-out on Main Street in Westbrook, and a high speed police chase, during which the Chevelle was driven off the road in the vicinity of the Maine Medical Center in Portland where it was abandoned, Strode and defendant having commandeered another automobile to resume their flight. Ultimately, both the defendant and Strode were apprehended, defendant having been arrested on the day following the police chase in the vicinity of the State Police Barracks in Scarborough.

1.

As a first point of appeal, defendant maintains that the evidence clearly established that (1) defendant and Strode had told Prout that they 'would take care of . . . (the automobile) and see (that) he (Prout) got it back as soon as possible' and (2) defendant intended only a temporary use of Prout's Chevelle. Defendant argues that the evidence thus failes to warrant a conclusion beyond a reasonable doubt that defendant had the specific intent requisite for 'robbery.' (Hereinafter, reference to the 'specific intent' necessary for 'robbery' signifies the 'specific intent' incorporated into 'robbery' as embracing 'larceny.')

Although defendant is correct that robbery is a crime requiring a particular specific intent, State v. McKeough, Me., 300 A.2d 755 (1973), 2 defendant wrongly apprehends its substantive content.

A summarizing statement appearing in defendant's brief most clearly exposes his misconception of the law. Acknowledging that on all of the evidence the jury could properly

'. . . have inferred . . . that (defendant and Strode) . . . intended to get away from the authorities by going to New York or elsewhere whate they would abandon the car . . .', (emphasis supplied)

defendant concludes that, nevertheless, the State had failed to prove the necessary specific intent because it is '. . . entirely irrational to conclude . . . that the defendant himself intended at the time he and Strode took the car, to keep the car in their possession for any length of time.' (emphasis supplied)

Here, defendant reveals that he conceives as an essential element of the specific intent requisite for 'robbery' that the wrongdoer must intend: (1) an advantageous relationship between himself and the property wrongfully taken, and (2) that such relationship be permanent rather than temporary.

Defendant's view is erroneous. The law evaluates the 'animus furandi' of 'robbery' in terms of the detriment projected to the legally protected interests of the owner rather than the benefits intended to accrue to the wrongdoer from his invasion of the rights of the owner.

As shown by various of the cases compiled in the Annotation 12 A.L.R. 804, et seq., appended to a decision of the Nebraska Court in McIntosh v. state, 105 Neb. 328, 180 N.W. 573, 12 A.L.R. 798 (1920), many of the earlier decisions reveal language disagreements, as well as conflicts as to substance, concerning whether a defendant can be guilty of 'robbery' without specifically intending a gain to himself (whether permanent or temporary), so-called 'lucri causa.' In the more recent cases, there is overwhelming consensus that 'lucri causa' is not necessary. See: pertinent cases assembled in the A.L.R. Annotation, supra, and in 50 Am.Jur.2d, Larceny § 39, (pp. 198-201).

In two earlier opinions of this Court language appears suggesting that 'lucri causa' is essential to the 'animus furandi' of larceny. In State v. Coombs, 55 Me. 477, 480 (1868) it is stated that the wrongful taker of the property must intend to 'convert it to (his) . . . use . . ..' In State v. Morin, 131 Me. 349, 352, 163 A. 102, 103 (1932) the phrasing is that the wrongdoer must intend

'to deprive the owner of his property and appropriate the same . . ..' (emphasis supplied)

The language, 'convert it to the taker's use', in State v. Coombs, supra, is part of a quotation from Baron Parke in Regina v. Holloway, 2 Car. & Kir. 942, 944 (1848). Had Coombs fully quoted Baron Parke, it would have shown that he was speaking of a then prevealent definition advanced by one, 'Mr. East' which Baron Parke thought misleading and in need of clarification. Baron Parke explained that the 'East' definition would be correct only if taken to mean that the 'animus furandi' in larceny is

"intent' . . . to deprive the owner, not temporarily, but permanently, if his property.' (p. 946)

Further, in Regina v. Holloway, supra, Baron Parke asserted that the case of Rex v. Webb and Moyle, 1 M.C.C. 431 (1935) was authority that the specific intent requisite for larceny is constituted solely by the intent to deprive the owner permanently of his property and, hence, 'lucri causa' is not an essential element of it. (p. 845). 3 Finally, all of the other judges in Regina v. Holloway (who gave expression to their views)-Alderson, B., Lord Denman, C. J., and Coltman, J.,-agreed with Baron Parke that the specific intent requisite for larceny is only the intent to deprive permanently the owner of his property. (pp. 945-947)

The same point clarifies this Court's use in State v. Morin, supra, of the concept of 'appropriation' in conjunction with the language 'to deprive the owner of his property.' The opinion refers to one authority: 2 Bishop's New Crim. Law, § 379. The author of that treatise, like Baron Parke in Regina v. Holloway, supra, carefully explains that words such as 'appropriate' or 'convert . . . to the taker's use' are not intended to convey that 'lucri causa' is essential but only to emphasize that the defendant must intend conduct producing a permanent, rather than temporary, effect upon the owner's interest to have continuing enjoyment of his property. 2 Bishop's Criminal Law (9th ed., 1923) §§ 840 and 841 (at pp. 638 and 640). Citing English cases:-Regina v. Jones, 1 Den.C.C. 188, 2 Car. & Kir. 236; Regina v. Privett, 1 Den.C.C. 193, 2 Car. & Kir. 114; Rex v. Morfit, Rus. & Ry. 307 and Rex v. Chbbage, Rus. & Ry. 292, the 'Bishop' text asserts:

'The English courts seem at last to have utterly overthrown the old notion of lucri causa.' (Section 846 at p. 645)

Bishop then states the ultimate conclusion that 'on principle' it is erroneous to require lucri causa since this

'is to place the love of greed, as a base motive, pre-eminent over all other base motives. . . . (In any event) it is immaterial to the person injured what species of base motive moved the wrongdoer. And the wrong to society is the same whatever the nature of the baseness.' (Section 848 at p. 647)

We now decide, in confirmatory clarification of the law of Maine, that 'lucri causa' is not an essential element of the 'animus furandi' of 'robbery.' As stated most recently in State v. McKeough, supra, the specific intent requisite for 'robbery' is defined solely in terms of the injury projected to the interests of the property owner:-specific intent 'to deprive permanently the owner of his property.' (300 A.2d p. 757) Also: State v. Greenlaw, 159 Me. 141, 189 A.2d 370 (1963); Stanley v. Prince, 118 Me. 360, 108 A. 328 (1919); Wheeler v. Phoenix Assurance Company, Ltd., 144 Me. 105, 65 A.2d 10 (1949).

The instant question thus becomes: on the hypothesis, arguendo, that defendant here actually intended to use the Prout automobile 'only temporarily' (as he would need it to achieve a successful flight from the authorities), is d...

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21 cases
  • State v. Pabon
    • United States
    • Maine Supreme Court
    • September 13, 2011
    ...cause for setting aside the verdicts below.” 159 Me. 141, 150, 189 A.2d 370 (1963), overruled on other grounds by State v. Gordon, 321 A.2d 352, 359 (Me.1974). [¶ 21] Beginning with State v. McKeough, 300 A.2d 755, 761 (Me.1973), we have generally framed the obvious error test in terms of a......
  • State v. Rice
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    • Maine Supreme Court
    • November 2, 1977
    ...a finding that defendant intended permanently to deprive the victim of his property, it is a "specific intent" crime. State v. Gordon, Me., 321 A.2d 352, 355-357 (1974). Assault and battery, however, even where amplified by the addition of an element concerning a deadly weapon, is not. Stat......
  • State v. Thibodeau
    • United States
    • Maine Supreme Court
    • March 15, 1976
    ...thereon did not result in serious prejudice to the defendant and did not amount to manifest and reversible error. In State v. Gordon, 1974, Me., 321 A.2d 352, 357, this Court re-affirmed the McKeough concept that 'the specific intent requisite for 'robbery' is defined solely in terms of the......
  • State v. Brasslett
    • United States
    • Maine Supreme Court
    • October 19, 1982
    ...State v. McKeough, Me., 300 A.2d 755, 757, n. 4 (1973); State v. Dematteo, Me., 308 A.2d 579, 580 (1973). See also State v. Gordon, Me., 321 A.2d 352, 357-58 (1974). We conclude that the Maine Criminal Code, in its structural arrangement of separate sections defining the crime of theft by t......
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3 books & journal articles
  • § 32.07 Larceny: Intent to Steal (Animus Furandi)
    • United States
    • Carolina Academic Press Understanding Criminal Law (CAP) 2022 Title Chapter 32 Theft
    • Invalid date
    ...nor a showing of intent to cause financial loss" to another); see Jupiter v. State, 616 A.2d 412, 416 (Md. 1992); State v. Gordon, 321 A.2d 352, 356 (Me. 1974).[70] American Law Institute, Comment to § 223.3, at 175 (defining the word "deprive" in the statutory provision).[71] People v. Ave......
  • § 32.07 LARCENY: INTENT TO STEAL (ANIMUS FURANDI)
    • United States
    • Carolina Academic Press Understanding Criminal Law (CAP) 2018 Title Chapter 32 Theft
    • Invalid date
    ...nor a showing of intent to cause financial loss" to another); see Jupiter v. State, 616 A.2d 412, 416 (Md. 1992); State v. Gordon, 321 A.2d 352, 356 (Me. 1974).[70] . American Law Institute, Comment to § 223.3, at 175 (defining the word "deprive" in the statutory provision).[71] . People v.......
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    ...v. Commonwealth, 467 S.E.2d 848 (Va. Ct. App. 1996), 369 Gordon, People v., 636 N.Y.S.2d 317 (N.Y. App. Div. 1996), 214 Gordon, State v., 321 A.2d 352 (Me. 1974), 531 Gorshen, People v., 336 P.2d 492 (Cal. 1959), 304 Gounagias, State v., 153 P. 9 (Wash. 1915), 507 Govan, State v., 744 P.2d ......

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